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The Lord giveth and the Lord taketh away, nowhere with more caprice than with the criminal justice system. On the plus side, there are at least a couple of good trends: a tilt from the death penalty (with serious qualifications about the “living death” alternative I discussed here recently) and a move away from imprisonment for victimless crimes—as evidenced by medical marijuana laws; impending reform of the Rockefeller drug laws; and Prop 36 in California, offering treatment alternatives to prison.

On the minus side, there are some grim developments. For violent felons, sentencing laws have been getting steadily worse. There have been big increases in sentencing enhancements (time added to your “base sentence” for using a gun, having prior felony convictions, gang-related nature of the crime, hate crimes, etc.). Some of these enhancements are new; others have been around for a long time but have gotten much more punitive, though there was a heartening victory in California in November with the defeat of Prop 6, which would have increased penalties for gang-related crimes.

Other bad trends include the growing use of solitary confinement units, the tendency to try juveniles as adults and, of course, the post-9/11 general loss of civil liberties, thanks to the ever more-conservative federal judiciary. This is not to forget the vindictive sex-offender laws that have been passed in the last few years.

So the introduction of life without the possibility of parole (LWOP)—as a sentencing option can be seen as part of the overall trend of toughening sentences for violent criminals, except when it is introduced as an alternative to the death penalty, and even here there’s a paradox: there’s much less money and access to the appeals process available in states like California to fight life imprisonment without parole, or with parole for that matter, than there is to fight the death penalty.

However, one seasoned obsrver who has worked on many death penalty defenses points out that when people go into LWOP, they are evaluated according to a detailed point system that assesses their potential danger to inmates and guards, the prison population’s potential danger to them, and the likelihood they’ll escape, or try to. These are the factors that lead to a decision to isolate someone. It’s not an automatic part of LWOP punishment. It’s probable that most are put in the general prison population. “The LWOP is horrible,” this person says, “because it leaves people no hope of ever rejoining society or atoning. It tells them they are hopeless and worthless and that the darkest of human impulses aren’t human; it denies the concept of rehab and redemption. It’s bad enough without exaggerating the details. With death they will be sitting in isolation for 17 or 20 years; whereas with LWOP they’ll be in the general prison population, with a job, maybe a class, the Jesus people ministering to them in groups if they like that, some friends, the use of the library.

“As you might suspect, pro-LWOP rhetoric is all tied up with defense lawyer rhetoric at trial. Everyone tells the jury how great it would be to give the guy or woman ‘a punishment worse than death’ … because everyone at trial is terrified of the impending verdict. It’s like an emergency room: all automatic pilot by the legal defense team — reflex tactical activity, no higher thought, pandering to the hatred and anger of the community. Smart lawyers believe these cases should NEVER go to trial — they should be pleaded out. If they do get to trial, it’s all about trying to save a life, no matter what. It would probably help this situation if the death penalty were abolished. Until then, unfortunately, courtroom rhetoric bleeds into political rhetoric.”
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The focus on LWOP tends to blur the fact that it is very hard for lifers NOT doing LWOP to get out on parole. Scott Handleman, an attorney in San Francisco who has spent much time representing prisoners in parole cases, has been helpful with the chastening data. In California last year, 31,051 prisoners were serving sentences of life with the possibility of parole. Of those, 8,815 have passed their “minimum eligible parole date,” meaning they have served long enough to be receiving parole hearings. Of those, 6,272 had hearings on the Board of Parole’s calendar last year. (Some prisoners serving beyond their minimum eligible parole date do not get hearings in a given year because they were denied for multiple years in a prior hearing.) Only 272 lifers were found suitable for parole by the board in 2008.

Moreover, the board’s decisions in these 272 cases were subject to Governor Schwarzenegger’s review. The California governor has the power, in murder cases, to reverse the board’s ruling and take away the parole date. For other life-sentence crimes, he can order the board to reconsider its decision. So only a fraction of those whose parole cases got reviewed were actually released to the streets. In 2007 the board found 172 lifers suitable for parole; Governor Schwarzenegger reversed 115 of those decisions, referred eighteen back to the board for reconsideration, modified two and let stand only thirty-seven. That means in 2007 somewhere between thirty-seven and fifty-seven life-term prisoners got out of prison in the whole state of California. Out of the roughly 30,000 prisoners who were serving sentences of life with the possibility of parole in 2007, somewhere around 0.1 percent to 0.2 percent were released. Last year the situation improved very slightly, thanks in part to a Supreme Court of California ruling that parole cannot be denied forever.

There’s a popular conception, nourished by the shock jocks on talk-radio, that people doing life sentences get put back on the streets by way of a revolving door, Willie Horton style. In fact, release for lifers is a rare phenomenon.

That being the case, what is the point of introducing LWOP as a sentencing alternative? What LWOP means is that for convicted murdurers who would otherwise get life with parole, often at very young ages, and who redeem themselves through rehabilitative efforts, even the remotest possibility of release will never become available. The hopelessness that comes with an LWOP sentence is a heavy psychological burden to bear. According to the Equal Justice Initiative, at least seventy-three inmates—most of whom are minorities—are serving LWOP for crimes committed at age 13 or 14.

It’s expensive running an ever-expanding gulag. State after state is finding that herding the dangerous classes into prison with tools such as the Rockefeller drug laws and throwing away the key for decades or forever by nonnegotiable mandatory minimum sentencing costs too much. But then there’s a problem: what to do about the prison unions and the towns (like many in New York) that survive economically only because of prison jobs, where the prison population is greater than the population of free people, and the free people love it because, apart from the jobs keeping their kids from fleeing the post-industrial or post-ag wasteland, the prisoners count in the census, giving these towns and regions more representation in statehouses, hence more political power, than they deserve.

Shades of Gogol, who was born 200 years ago this year. The motor of his great novel is the economic use of “dead souls”—deceased serfs listed by the state as assets of the landlords. The novel’s central character, Chichikov, goes around buying them up. New York State could take Gogol’s hint and start auctioning its “living dead” as income generators to other states in need. Looking at our criminal justice system here, Gogol would surely use the line carved on his gravestone: “And I shall laugh my bitter laugh.”

Round Up the Usual War Criminals!

Ten years ago NATO and its battle-commander Wesley Clark deliberately murdered 16 journalists and kindred media workers, who had the courage and the misfortune to be working at Radio Television Serbia (RTS). At 2.06 am local a bomb launched from the NATO plane slammed into the building – news desks, studios, and the makeup room – in downtown Belgrade. Most of the victims were young people – a makeup artist, technicians and production personnel.

It was an obvious war crime, even though Amnesty International prudently waited an entire decade – until this last April – to issue a report saying so. Amnesty now issues a call for NATO to be held accountable for the lives of those killed at RTS: “the bombing of the headquarters of Serbian state radio and television was a deliberate attack on a civilian object and as such constitutes a war crime”.

In the new issue of our CounterPunch newsletter Tiphaine Dickson lays out the outrageous saga of how the Western powers dealt with this atrocity, by sponsoring a kangaroo court in Belgrade which sentencedto a lengthy term one of the targets of the bomb! This was the director of RTS , Dragoljub Milanovic,. He drew nine and a half years in prison for reckless endangerment of his staff! Newspapers like the New York Times raised not a word of protest at NATO’s claim that RTS deserved to be bombed.

Dickson, a defense attorney specialized in international criminal law, recently visited Milanovic in prison, and discovered he is eligible for parole but his persecutors are trying to lock him away for a further term. In her riveting story she gives close attention to the murky role of CNN and of Eason Jordan, then chief news executive of CNN international and later – by a satisfactory irony, fired by CNN for alleging that the US military was deliberately targeting journalists in Iraq.

Subscribe now to read this important story. In the same exciting issue you’ll get former US Senator Jim Abourezk on Wounded Knee and yours truly on one of the crucibles for the Sixties upsurge, Stiles Hall in Berkeley, and its amazing director at that time, Harry Kingman.